The Audiovisual Media Services Directive (AVMSD) was originally designed for satellite TV, where broadcasters are a) in full editorial control and b) content is actively transmitted to viewers. It was subsequently extended to “on-demand” services, where providers a) make an active choice to decide what is made available, but b) where viewers choose what to watch. The plan is now to extend it to video-sharing and (some) social media platforms, where there is a) no editorial control and b) where viewers choose what to watch. In other words, there is almost no similarity between the original purpose and what is now being done. In many ways, this is like regulating a Porsche using legislation designed for regulating a donkey cart.

What about the E-Commerce Directive on service provider liability?

In both the Council of the European Union and the European Parliament, there has been a lot of discussion about whether the AVMSD undermines the E-Commerce Directive, adopted in 2000. That Directive protects freedom of expression by ensuring that internet companies are not unduly incentivised to delete content. It does so by limiting liability to situations where they fail to act diligently upon receipt of a notice of illegality of the content in question.

The Council and the Parliament want a wide variety of content to be regulated – anything that (based on the wisdom of the provider, in the first instance) might impact the physical, mental and moral development of minors. At the same time, video-sharing and (some) social media platforms are expected to restrict content that is an “incitement to violence or hatred” by reference, for example, to sex, racial or ethnic origin, disability, age, or sexual orientation.

The content that the providers will be required to regulate is not, or not necessarily, illegal. As a result, it is argued that this privatised regulation of freedom of expression does not breach the E-Commerce Directive, because the obligation is to regulate content. In short, restriction of legal content is not a breach of rules that cover illegal content.

So, how will video-sharing platforms do all of this?

One of the options is for states to regulate freedom of expression by regulating the terms of service of the social media companies and video-sharing platforms. This will allow content to be deleted without ever referring to the law. This fits with other EU instruments, such as the Europol Regulation, which allows police authorities to coerce companies into deleting online content. The Europol Regulation creates the task of “making of referrals of internet content, by which such forms of crime are facilitated, promoted or committed, to the online service providers concerned for their voluntary consideration of the compatibility of the referred internet content with their own terms and conditions.” It does not, however, fit so well with the Charter of Fundamental Rights and the European Convention on Human Rights, both of which require restrictions on fundamental rights to be provided for by clear, predictable law.

Craziest proposal – European Parliament

The craziest part of the Parliament’s proposal is probably importing, ironically from the Charter of Fundamental Rights of the European Union, the list of types of discrimination that the EU Member States are prohibited from imposing. These prohibited types of discrimination then become the list of types of “incitement to hatred” that social media companies should protect us from with their terms of service. So, video-sharing platforms would have to protect people from “incitement to hatred” as a result of “other opinions”. The list makes complete sense in the Charter of Fundamental Rights, and no sense at all in the Directive that regulates audiovisual media services.

Craziest proposal – Council of the European Union

Remarkably, the Council text proposes that video-sharing and social media platforms should regulate live-streamed video. The Council also proposes banning of content that is already banned by the Terrorism Directive. The Council’s position before this week’s discussions was leaked by EDRi member Statewatch and is available here.

This is nuts! Are there no voices of sanity?

Yes, just not enough, so far. Seven European Union Member States have expressed serious concerns regarding the proposals to further extend the scope of the AVMSD. They did so in an unpublished joint “non-paper” sent to the EU Council Presidency. The UK has made its reservations known separately. Those seven Member States (Czech Republic, Denmark, Finland, Ireland, Luxembourg, the Netherlands, and Sweden) pointed out the obvious problems of requiring video-sharing platforms to “police” non-illegal content over which they do not have editorial control.

The “non-paper” diplomatically but meaningfully points to the absurdity of the proposal to expand the scope of the Directive to services, which could not “reasonably be expected by an end-user to be regulated similarly to audiovisual media services”, such as animated GIFs.

Some of the political groups in the Parliament have been working astonishingly hard to try to achieve even small improvements in the text. Ironically, while the AVMS Directive represents much of what is worst in EU policy-making, the huge efforts made by some politicians behind the scenes on this file represent some of the finest, selfless, thankless work from EU parliamentarians.